Citation Nr: 1040637
Decision Date: 10/29/10 Archive Date: 11/04/10
DOCKET NO. 06-03 873A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Chicago,
Illinois
THE ISSUES
1. Entitlement to service connection for treatment purposes only
under 38 U.S.C. Chapter 17, for depression.
2. Entitlement to service connection for treatment purposes only
under 38 U.S.C. Chapter 17, for right heel disability.
3. Entitlement to service connection for treatment purposes only
under 38 U.S.C. Chapter 17, for left heel disability.
ATTORNEY FOR THE BOARD
T. Wishard, Associate Counsel
INTRODUCTION
The appellant had military service from March 1969 to August 1970
for which he received a discharge under conditions other than
honorable (OTH). Service personnel records establish that he had
301 days lost time under 10 U.S.C. § 972 (from May 4, 1969
through June 23, 1969, August 4, 1969 through February 26, 1970,
and from June 4, 1970 through July 17, 1970) for periods of
absence without leave, pre-trial confinement, and confinement as
the result of a court-martial.
These matters come before the Board of Veterans' Appeals (Board)
from a February 2005 rating decision of the Department of
Veterans Affairs (VA), Regional Office (RO) in Chicago, Illinois
which denied entitlement to service connection for the
disabilities at issue. (Although the rating decision also denied
service connection for treatment purposes for two other
disabilities, the appellant's notice of disagreement did not
reflect a disagreement with those two disabilities.)
In a December 2005 Statement of the Case (SOC), the RO determined
that the appellant's character of discharge constitutes a bar to
the payment of VA benefits. In a separate December 2005 SOC, the
RO denied service connection for treatment purposes under
38 U.S.C. Chapter 17. In his VA Form 9, the appellant checked
both boxes with regard to whether he was appealing all issues on
the SOC or appealing only some issues. He further listed only
the three issues with regard to service connection for treatment
purposes only under 38 U.S.C. Chapter 17. Finally, he referenced
the December 27, 2005 SOC (although the SOC is actually dated
December 22, 2005, the accompanying Chapter 17 SOC letter is
dated December 27, 2005). The appellant attached a copy of that
SOC to the VA Form 9. Based on the foregoing, the Board finds
that the appellant has only appealed the denial of entitlement to
service connection for treatment purposes only under 38 U.S.C.
Chapter 17.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the appellant if
further action is required.
REMAND
Right and Left Heel
A VA examination of the appellant's bilateral feet was obtained
in February 2005. To that end, when VA undertakes to provide a
VA examination or obtain a VA opinion, it must ensure that the
examination or opinion is adequate. Barr v. Nicholson, 21 Vet.
App. 303, 312 (2007). The Board finds that the VA examination
was adequate; however, the accompanying opinion was not.
The appellant avers that he had stress fractures in the service.
The STRs appear negative for stress fractures; however, they do
reflect complaints of heel pain. The appellant's STRs reflect
that in April 1969, two weeks after entry into active service,
the appellant sought treatment for his right ankle/foot. It was
noted to be a sprain of the right foot. He was ordered to not
run, jump, or march for three days. Subsequent April STRs note
"bad heels", that the appellant's feet were swollen and hurt,
that he was to soak his feet, and that he was ordered to light
duty, no prolonged walking, and no prolonged standing. He was
noted to have Achilles tendonitis. A July 1969 STR reflects that
the appellant was seen for his feet, and was "capable of
returning to regular duty." The appellant's July 1970 medical
evaluation for separation purposes reflects that the appellant's
feet were noted to be normal.
An April 2002 private medical record reflects that the appellant
complained of right heel pain for the past two weeks. He
reported a history of stress fractures of the bilateral heels.
He complained of occasional numbness in that area. An x-ray
indicated a small plantar spur.
A May 2002 private medical record reflects that the appellant was
seen for pain of the right heel. It was noted that pain was
present for five weeks duration.
An October 2002 progress note (mental health) reflects that the
appellant reported that he had been diagnosed with a torn
ligament in his foot.
October 2002 through January 2003 private medical record reflects
that the appellant wore orthotics on his feet, had significant
heel pain of the right extremity, and had not responded to
treatment. It was noted that "[m]uch of this centers from
previous fractures of both heels which has made him more prone to
this type of condition" (See January 2003 record).
A February 2005 VA examination report reflects that the appellant
reported that he had sore feet in basic training, which were
treated, and that he went AWOL (absent without leave). He avers
that when the police apprehended him approximately 30 days later,
his feet were feeling better. He further avers that after
returning from AWOL, he got sore feet again and was told that he
had some stress fractures of the right heel. He further states
that they bothered him more in 1970 and was told he had a stress
fracture. He further states that he had some minor problems
"off and on" throughout the years, but really about 1999, the
feet started getting worse. The appellant's service personnel
records reflect that the appellant was initially AWOL from May 4,
1969 to June 23, 1969. The appellant's STRs are negative for any
subsequent complaints of, or treatment for, a heel or foot
disability.
The VA examiner, upon clinical examination, and a review of the
appellant's STRs opined that stress fractures of 1969 are less
likely than not related to his current plantar fasciitis. The
examiner also found that the Achilles tendonitis in service was
not related to his current problem. (The Board notes that the VA
examiner referred to the Achilles tendonitis of April 2002;
however, the Achilles tendonitis was diagnosed in service in
April 1969). Unfortunately, the VA examiner did not provide a
rationale for his opinion. See Nieves-Rodriguez v. Peake, 22 Vet
App 295 (2008). Therefore, the Board finds that a supplemental
opinion is warranted.
Depression
The appellant's service personnel records reflect that he entered
active duty on March 25, 1969. He was AWOL from May 4, 1969 to
June 29, 1969. He was again AWOL from August 4, 1969 to January
15, 1970. He was in confinement from January 19, 1970 to May 5,
1970. He was again AWOL from June 4, 1970 to July 17, 1970. In
July or August 1970, the appellant requested that he be
discharged in lieu of court martial. The appellant was separated
from the service on August 18, 1970 under other than honorable
conditions
The appellant's STRs are negative for any complaints of
depression in service. A post service private medical record in
December 1998 reflects that the appellant stated that he had
anxiety and nervousness which was getting worse. A July 1999
private medical record reflects that the appellant reported that
he had been depressed for four or more years. An August 1999
private clinical record reflects that the appellant reported he
was depressed for four years. A subsequent August 1999 reflects
that the appellant reported he had been depressed for a number of
years, and that it had gotten worse since 1997 when he was
injured on the job. A December 1999 private medical record
reflects that the appellant's physical problems lead to his
depression. A June 2001 record reflects the appellant reported
that he was very oppositional in service and had been badly
abused. A September 2002 record reflects he reported that he was
imprisoned in service for failure to adapt. A February 2003
record reflects the appellant reported that he felt guilty about
how he acted in the service, and that a friend had suggested that
maybe he had been depressed in the army. An April 2003 report
reflects that the appellant reported that he thinks that he
became depressed after he broke his heels in the military and was
transferred to another unit. The Board finds that a VA
examination and opinion to determine whether the appellant has
depression causally related to active service is warranted.
Other Disability Benefits Adjudication
The appellant has reported that he receives Social Security
Administration (SSA) compensation. The record also reflects that
the appellant may have previously filed for "union disability"
(See December 1999 private medical record). No such records are
associated with the claims file. The record reflects that the
appellant has non-service-connected disabilities and the record
is unclear as for which disabilities the appellant is receiving
disability compensation. The Board also notes that a July 1999
private medical record reflects that the appellant's disability
application had been denied, although it does not state if this
was a union or SSA application. The Board finds that VA should
attempt to obtain any union or SSA records with regard to
compensation to the appellant.
Accordingly, the case is REMANDED for the following action:
1. Contact the Social Security
Administration and obtain a copy of that
agency's decision, if any, which considered
the Veteran's entitlement to disability
benefits, including all medical records
used to make the decision.
2. Request the appellant to complete and
return a provided VA Form 21-4142,
Authorization and Consent to Release
Information, for any union disability
benefits application and adjudication based
on a heel disability and/or depression.
After obtaining a completed VA Form 21-4142,
the AOJ should attempt to obtain a copy of
the union's decision, including all medical
records used to make the decision.
3. Thereafter, make arrangements with the
same clinician who conducted the February
2005 VA examination, if possible, to provide
a supplemental medical opinion in this case.
The clinician should review the claims file.
If the same clinician is not available, the
appellant should be afforded a VA
examination by another clinician to
determine the extent and etiology of any
current right and/or left heel disability.
All necessary tests should be performed.
The clinician should provide an opinion as
to whether it is at least as likely as not
(whether there is a 50 percent or greater
probability) that the appellant's current
right and/or left heel disability is
causally related to active service. The
clinician is requested to provide a
complete rationale for his or her opinion,
as a matter of medical probability, based
on his or her clinical experience, medical
expertise, and established medical
principles. The clinician should
discuss whether the STRs reflect
fractures of the heel(s), and
reconcile his/her opinion with the
January 2003 opinion by the private
medical clinician.
The VA examiner is advised that the term
"as likely as not" does not mean within
the realm of possibility. Rather, it means
that the weight of medical evidence both for
and against a conclusion is so evenly
divided that it is medically sound to find
in favor of causation as to find against
causation.
The appellant should be advised that failure
to appear for an examination as requested,
and without good cause, could adversely
affect his claim, to include denial. See 38
C.F.R. § 3.655 (2010).
4. Schedule the appellant for a psychiatric
examination to determine if he has an
acquired psychiatric disability, to include
depression. The clinician should provide an
opinion as to whether it is at least as
likely as not (whether there is a 50 percent
or greater probability) that the appellant
has any such disability causally related to
active service. The clinician is requested
to provide a complete rationale for his or
her opinion, as a matter of medical
probability, based on his or her clinical
experience, medical expertise, and
established medical principles.
The VA examiner is advised that the term
"as likely as not" does not mean within
the realm of possibility. Rather, it means
that the weight of medical evidence both for
and against a conclusion is so evenly
divided that it is medically sound to find
in favor of causation as to find against
causation.
The appellant should be advised that failure
to appear for an examination as requested,
and without good cause, could adversely
affect his claim, to include denial. See 38
C.F.R. § 3.655 (2010).
5. Thereafter, readjudicate the issues on
appeal. If any benefit(s) sought is not
granted, issue a supplemental statement of
the case and afford the appellant an
appropriate opportunity to respond.
Thereafter, the case should be returned to
the Board, as warranted.
The appellant has the right to submit additional evidence and
argument on the matters the Board has remanded. Kutscherousky v.
West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C.A.
§§ 5109B, 7112 (West Supp. 2009).
_________________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a decision
of the Board on the merits of your appeal. 38 C.F.R.
§ 20.1100(b) (2009).